A battle over rights to publish an electronic edition of an award-winning children’s novel offers a glimpse into an evolving area of copyright law.
HarperCollins has the exclusive right to publish “Julie of the Wolves,” a book first published in 1971, in e-book form, a federal judge in New York has ruled. The ruling ended a lawsuit that started nearly five years ago, when HarperCollins sued Open Road Integrated Media, a publisher of electronic books that had published an e-book of the novel.
Though the fight ended recently, it has roots in a contract forged in 1971 between Jean Craighead George, the book’s author, and Harper & Row, a predecessor of HarperCollins. The agreement gave Harper & Row the right to publish “Julie of the Wolves,” which won the Newberry Medal in 1973 and tells the story of an Eskimo girl who learns to live in the wild.
In 2010, George entered into an agreement with Open Road to publish its version of her novel after HarperCollins declined to match the terms of Open Road’s offer, which included a 50% royalty to George. However, shortly after Open Road published the electronic edition, HarperCollins sued, charging that the e-book contravened a copyright that belonged to HarperCollins under the contract formed roughly 40 years earlier.
HarperCollins prevailed. “Based on a plain reading of the contractual language, we hold that the 1971 contract grants HarperCollins the exclusive right to license third parties to publish e-book versions of ‘Julie of the Wolves,’” Judge Naomi Reice Buchwald of the U.S. District Court in Manhattan wrote in a ruling last March. “This determination follows from the contract as a whole, and chiefly from Paragraphs 1, 20 and 23.”
Paragraph 1 of the agreement gave Harper & Row the exclusive right to publish “Julie of the Wolves” in book form. Together with Paragraph 23, Paragraph 20 granted Harper & Row the right to license the book “in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now or hereafter invented.”
Buchwald’s ruling should have ended the lawsuit. But Open Road, which hoped to obtain a license to publish the e-book, sold 304 more e-books between March 17, when the court issued its order, and April 9, when HarperCollins’ general counsel told Open Road’s lawyer that HarperCollins had no interest in a license and demanded that Open Road stop selling its electronic edition.
In May, HarperCollins returned to court to ask Buchwald to permanently enjoin Open Road from publishing “Julie of the Wolves” or presenting itself as an authorized publisher of the novel.
The court agreed. “Rather than take immediate steps to conform to our decision, [Open Road] apparently viewed that decision as merely a prelude to negotiations,” Buchwald wrote in an order published Nov. 24. “Furthermore, although Open Road discontinued sales after receiving HarperCollins’ demand, it is apparent that Open Road did not take every reasonable action to discontinue marketing its unauthorized edition of ‘Julie of the Wolves’ until after briefing on the appropriate remedies had commenced.”
“In other words, Open Road failed to ensure compliance with our decision until its failure was called to the Court’s attention,” Buchwald added.
The court awarded HarperCollins damages of $30,000 to compensate the company for sales of the e-book by Open Road in markets covered by HarperCollins’ copyright.
Though HarperCollins also asked the court to order to award attorneys’ fees of roughly $1 million, Buchwald denied the request, finding that Open Road’s advocating for a right at odds with the 1971 contract was not unreasonable as that term is defined by the Copyright Act.
“Our reticence to characterize the losing position as objectively unreasonable is informed by the fact that this dispute arose in the context of a developing, and still somewhat uncharted, area of copyright law,” Buchwald wrote.